Is Idaho's Constitutional Defense Fund A Backstop For Shaky Legislation?

Sep 12, 2019

When states challenge the federal government over things like public land rights or same-sex marriage rights, taxpayers are on the hook for that.

Idaho is one of at least two states that has a separate bank account to pay for legal fees and settlements in these cases, though critics say it’s giving state legislators more license to pass laws courts have found to be unconstitutional.  

Those behind the Constitutional Defense Fund will tell you it was established in Idaho for one reason: to push back against what conservative lawmakers in the ‘90s saw as the federal government trampling over states’ rights.

Former Idaho House Speaker Bruce Newcomb says there were a lot of issues popping up that he felt the state needed to push back against.

“The Clean Water Act, we had the Endangered Species Act, we had the salmon issues and we had the federal government wanting to make a nuclear dump out of Idaho,” Newcomb said.

He was one of the lead sponsors of the bill back in 1995. And he says at first, the fund worked as intended.

"It's a political answer to the wishes of your constituents but knowing full well that there's not a very good chance of winning the lawsuit." -Bruce Newcomb, former Idaho House Speaker

That same year, Idaho hired an outside law firm to reach a settlement with the feds to stop bringing more nuclear waste into the state and clean up what was already stored here.

Newcomb says just having the fund also gave them leverage when federal environmental officials were considering regulating waterways more stringently.

“We threatened to file suit and with pressure from our legislative people in Congress, we were able to negotiate a compromise there.”

But several years later, Newcomb says the Constitutional Defense Fund became a kind of default checkbook for the Idaho legislature to pass laws based on optics rather than legality.

“A good share of these times the attorney general said, ‘We don’t have a leg to stand on,’ but we chose to pursue it anyway,” he said.

For example, in 2013, several Idaho counties refused to issue gay couples marriage licenses – even after the U.S. Supreme Court ruled same-sex marriage constitutional. That cost the state more than $700,000 when four couples sued. 

South Dakota has a similar fund and a handful of other states have created accounts to specifically defend their abortion laws.

The vast majority of the $3.1 million the fund has doled out has come in the last five years. 

The fund is overseen by a council made up of the governor, the attorney general, the speaker of the house and the senate pro tem, Brent Hill (R-Rexburg).

He says deciding which laws are Constitutional isn’t a choice made by the council – it’s made by him and his fellow legislators.

“I get to vote on statutes that I think are constitutional when I vote for them,” Hill said.

He rejects critics who say the fund is the Republicans’ own piggy bank, to pay to protect the laws the House and Senate pass and that the governor signs.

Senate Pro Tem Brent Hill (R-Rexburg) is one of the four members who sit on the Constitutional Defense Council.
Credit James Dawson / Boise State Public Radio

And Attorney General Lawrence Wasden, who declined to be interviewed for this story, has the power to bring and defend lawsuits challenging those laws.

So – each has a say in the process before any suit is brought.

But Hill says it’s better than it being handled by unelected bureaucrats.

“I think that one of the advantages of this is it’s not one agency and it’s not one person making the decision.”

That doesn’t sit well with Wendy Jaquet, who was the longtime House Minority Leader and who voted against the fund.

“Having a small number of people making the decision to expend the funds, the leadership model of the majority party, that’s not a democratic model,” Jaquet said. “I think that those kinds of decisions should be made at the full legislative level,” Jaquet said.

Bruce Newcomb, the former House Speaker, saw that as an advantage, too, when he helped write the bill.

He thinks the state still needs the Constitutional Defense Fund, but that it needs to go back to its original purpose: keepings the feds off of Idaho’s back.

“But that’s not going to happen until somebody takes the bull by the horns and does it, you know?”

Newcomb isn’t holding his breath.

Follow James Dawson on Twitter @RadioDawson for more local news.

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